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Ettinger v. Johnson


June 18, 1975



Author: Van Dusen

Before VAN DUSEN, ADAMS and GARTH, Circuit Judges


VAN DUSEN, Circuit Judge.

This appeal challenges an August 20, 1974, order of the district court, which denied plaintiff Ettinger's motions for class designation and for leave to amend her complaint, and entered judgment on the first amended complaint in favor of the defendants.*fn1

Ettinger was hired as a psychology technician, grade GS-5, by the Veterans Administration Center in Philadelphia, Pennsylvania (the Center) on May 5, 1970. She was promoted in December 1970 to grade GS-6.*fn2 Although she applied for promotions in March 1971 and April 1972, Ettinger was not promoted after December 1970. On November 17, 1972, Ettinger consulted an Equal Employment Opportunity Counselor at the Center,*fn3 alleging that she had encountered sex discrimination as a "continuing state of affairs" at the Center. The counsel construed Ettinger's allegations of sex discrimination as stating three specific complaints: (1) that she was discriminated against by being assigned to a GS-5 grade upon hiring; (2) that she was twice denied promotion because of her sex; and (3) that she was refused requested job training because of her sex. On December 6, 1972, after the counselor had investigated the facts relevant to each of these three complaints, he had a second interview with Ettinger. She advised him that she had just learned her work assignment was being changed and that she viewed this change as another instance of sex discrimination. The counselor, having investigated this latest charge, informed Ettinger at their final counseling session on December 8, 1972, that he found no basis "to her complaint that she had been discriminated against by reason of sex, either on a 'continuing' basis or at a single incident." Counselor's report of January 17, 1973, Document No. 4 in Civil No. 73-702, E.D. Pa. On December 18, 1972, Ettinger filed a formal complaint with the Center Director, Melidosian, alleging that she was subjected to "continuing" discrimination on the basis of sex. At an unspecified date after December 18, but within 15 days after the final counseling session, see 5 C.F.R. §§ 713.213(a) and 713.214(a)(1)(ii), the counselor apprised Ettinger that he questioned the timeliness of her resort to the counseling process and, therefore, of her formal complaint, "since the latest alleged act of discrimination mentioned at complainant's first session [on November 17] took place between 60-90 days previous," Document No. 4, supra, while the regulations require resort to a counselor within 30 days of an alleged discriminatory episode. 5 C.F.R. § 713.214(a)(1)(i). There is no indication that Ettinger knew of the 30-day limitation before this time.

Melidosian forwarded Ettinger's complaint to the Director of the Veterans Administration (VA), with the recommendation that it be rejected as untimely. This recommendation considered only the timeliness of the three complaints identified by the counselor as having been raised at the November 17 counseling session. No mention of the December 6 interview or of the allegedly "continuing" nature of the discrimination was made.

On February 22, 1973, Ettinger received a letter from the VA's Acting Assistant General Counsel, who declined to act on her complaint due solely to its untimeliness. The letter went on to state:

"If you are dissatisfied with this final decision, you have the following appeal rights:

You may appeal to the Chairman, Board of Appeals and Review, U.S. Civil Service Commission, Washington, D.C. 20415, within 15 calendar days of receipt of the decision.

You may file a civil action in an appropriate U.S. District Court within 30 days of receipt of the decision.

If you... appeal to the Commission, a civil action in a U.S. District Court may be filed within 30 days of receipt of the Commission's final decision.

A civil action may also be filed anytime after 180 days of the date of initial appeal to the Commission if there has not been a final decision rendered."*fn4

Pursuant to this notice of the right to sue, Ettinger bypassed an appeal to the Civil Service Commission and timely filed a complaint in the district court,*fn5 see Barnes v. Chatterton, 515 F.2d 916 (3d Cir. 1975), on behalf of herself and others similarly situated. The complaint, as amended, alleged that the defendants engaged "in employment practices which favor male applicants and employees and discriminate against females by preferential hiring, transfer, promotion [and] job assignment...." The district court, concluding that Ettinger was not entitled to trial de novo of her claims, granted summary judgment for the defendants on the ground that the administrative determination of untimeliness was supported "by not only substantial, but also uncontraverted facts" in the administrative record.

Ettinger filed this timely appeal in which she argues that she is entitled to a trial de novo of her discrimination claims in the district court and that, in any event, her resort to the administrative process was not untimely.*fn6

In Sperling v. United States, 515 F.2d 465 (3d Cir. 1975), this court decided that a federal employee who files an employment discrimination suit in the district court, pursuant to 42 U.S.C.§ 2000e-16(c),*fn7 is entitled to a trial de novo of his claim.*fn7a According to Sperling, then, we must remand this case to the district court for a trial de novo, unless we determine on this record that Ettinger, by failing to exhaust the administrative remedies available to her, has forfeited her right to resort to the district court.

"The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. See generally 3 K. Davis, Administrative Law Treatise § 20.01 et seq. (1958 ed., 1965 Supp.); L. Jaffe, Judicial Control of Administrative Action, 424-458 (1965). The doctrine provides 'that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.' Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 82 L. Ed. 638, 58 S. Ct. 459 (1938)."

McKart v. United States, 395 U.S. 185, 193, 23 L. Ed. 2d 194, 89 S. Ct. 1657 (footnote omitted) (1969).

Although, as the McKart Court pointed out, the doctrine is "subject to numerous exceptions," id., Love v. Pullman, 404 U.S. 522, 523, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972), makes clear that the exhaustion doctrine is not rendered superogatory merely by the availability of a trial de novo in the district court. The plaintiff in Love was a private sector employee who, like federal employees under Sperling, was entitled to a trial de novo. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Fekete v. U.S. Steel Corp., 424 F.2d 331 (3d Cir. 1970). Despite this access to the district court, the Court in Love stated that one "claiming to be aggrieved by a violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, [42 U.S.C. §§ 2000e to 2000e-15] may not maintain a suit for redress in federal court until he has first unsuccessfully pursued certain avenues of potential administrative relief." (Footnote omitted.)

The requirement that federal employees must, generally, exhaust administrative remedies is also implicit in Sperling's conclusion that "it was Congress' intent to provide an aggrieved federal employee with as full a panoply of procedural remedies in the district court as those afforded a private sector litigant." Slip op. at 28. Since dispensation from the exhaustion requirement would give federal employees greater access to the district courts than private sector litigants, the principle of equality of remedy expressed in Sperling mandates that federal employees also be required to exhaust their administrative remedies before suing in the district court. See also Penn v. Schlesinger, 497 F.2d 970 (5th Cir. en banc 1974), cert. denied, 426 U.S. 934, 96 S. Ct. 2646, 49 L. Ed. 2d 385; Robinson v. Klassen, 9 E.P.D. [*] 9954 (E.D. Ark. Oct. 3, 1974).

With this background, we turn to the question whether Ettinger has exhausted her administrative remedies.

Ettinger was under no duty to appeal the decision of the VA's General Counsel to the Civil Service Commission. Sperling, supra at slip op. 12-13, 18-19. She therefore runs afoul of the exhaustion doctrine only if she failed either to bring her complaints to the attention of the counselor within the time limits prescribed by 5 C.F.R. § 713.214 (a)(1)(i),*fn8 or to raise in the administrative process the issues set forth in her amended complaint.*fn9 Because the record before us, though not barren, does not contain sufficient facts relevant to deciding either aspect of this exhaustion issue, we will remand the case to the district court for a hearing de novo on the question of exhaustion. At the hearing on remand, the district court may consider in the context of a more fully developed factual record Ettinger's argument that she complied with the relevant time limitations in seeking agency resolution of her claims both because she alleged continuing discrimination and because she apprised the counselor on December 6, 1972, of a discriminatory incident which had occurred less than 30 days before. Should the district court determine that Ettinger's recourse to the counselor was timely, it should proceed to trial de novo of those substantive allegations of discrimination set forth in the amended complaint and submitted to the VA for adjustment. If, however, the district court finds that Ettinger did not resort to the counselor within 30 days after an alleged episode of discrimination, it should proceed to decide whether this failure to exhaust can be excused on any ground, such as Ettinger's ignorance of the applicable limitation periods. Penn v. Schlesinger, 490 F.2d 700, 713 (5th Cir. 1973), dissenting opinion of Godbold, J., approved en banc at 497 F.2d 970 (5th Cir. 1974), cert. denied, 426 U.S. 934, 96 S. Ct. 2646, 49 L. Ed. 2d 385 (1976). See also McKart, supra. In this regard, the district court is free to decide Ettinger's assertion that she did not know of the time limitations and was accordingly entitled to have the limitations period extended by the VA, as provided in 5 C.F.R. § 713.214(a)(4).*fn10

As this court noted in Sperling, supra at 29, summary judgment may well prove to be appropriate on remand if no genuine issues of fact appear. F.R. Civ. P. 56 applies to a trial de novo proceeding under 42 U.S.C. § 2000e-16(c), as it does to any other civil proceeding in the district court.

The judgment of the district court will, therefore, be vacated and the case remanded for proceedings consistent with this opinion.

ADAMS, Circuit Judge, concurring:

Although I have serious reservations regarding this Court's holding in Sperling v. United States*fn1 that federal employees are entitled to trials de novo in the district courts with respect to their allegations of employment discrimination and although some courts have raised questions whether, as the Court decided in Sperling, Section 717(c) of the Equal Opportunity Act of *fn19722 applies retroactively,*fn3 the Sperling decision now represents the law of this Circuit. Since the result reached by the majority here appears to be consistent with Sperling, I concur.

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